JUDGMENT
1. Being aggrieved by the judgment and order, dated 18-1-1980, of sentence passed by Sri J. B. Singh III Additional Sessions Judge, Mirzapur, in S.T. No. 86/79, the appellants have preferred this appeal. The said judgment was pronounced on 18-1 -80.
2. Accused appellants Meeta Harijan and accused Dukharan Harijan has been charged under Section 302, IPC, while other accused persons have been charged under Section 302, I.P.C. read with Section 34, I.P.C. for committing the murder of Parsadhu son of Ramdas at about 1.30 a.m. on the night between 15th and 16th of March, 1978 near his northern verandah at village Ban Imilia, P. S. Aharaura, District Mirzapur.
3. The prosecution case is that: accused persons developed enmity with the deceased. Accused Meeta Harijan and accused Neeta Harijan are the two real brothers and they are the residents of village Ban Imilia, while Prabhoo Harijan is the Pradhan of the said village and accused Dukharan Harijan is a resident of the same village and is a member of their community. Deceased Parsaddhu is a tenure holder over the plot No. 16-M area 1 I -0-0 of village Ban Imilia. A substantial portion of the said big plot No. 16 was under the management of the Gaon Sabha, Ban Imilia. Accused Parbhoo Harijan being the Pradhan of the Gaon Sabha had let out a portion of the said land near the land of Parsadhu to accused Meeta Harijan. Subsequently, accused Meeta Harijan in collusion with the Lekhpal and Kanoongo had managed to put his claim over a portion of the land held by the deceased Parsadhu during survey and measurement. Since deceased Parsaddhu had resisted the said claim and he remained in possession also, an enmity, started and continued in between them. Two days before the occurrence, accused Meeta Harijan, Jeeta Harijan and Dukharan Harijan had come at the house of deceased Parsaddhu at about 6.00 p.m. and out of them accused Meeta Harijan had threatened him and went to the extent of telling that the disputed land was demanding blood. On the night between 15th and 16th of March, 1978, deceased Parsaddhu was sleeping inside the southern verandah of his western house while his sons, P.W. 2 Mansaram and P.W. 6 Bans Narain and his sister's son P.W. 2 Murahu were sleeping inside the northern verandah of the adjacent eastern house. P.W. 5 Jawahir, a nephew of the deceased, was sleeping inside his separate house which lies in the north of the western house of the deceased. A lane measuring 3-1 cubits in the width lies between the eastern and western houses having doors towards the same. At about 11.30 a.m. on the said night, barking of dogs had disturbed the sleep of the deceased Parsaddhu. P.W. 2 Mansaram, P.W. 5 Jawahir, P.W. 6 Bans Narain and P.W. 7 Murahu. Immediately, Parsaddhu came out of his verandah and proceeded towards north through the said lane. In the meantime P.W. 2 Mansaram and P.W. 5 Jawahir started flashing their torches and P.W. 6 Bansh Narain and P.W. 7 Murahu too came out and they had witnessed all the accused persons. Since before that Prasaddhu had already inquired about their identity and all the accused persons went near him. Out of them accused Meeta Harijan gave one lathi blow over his forehead while accused Dukharan Harijan fired one shot from his pistol at his right abdomen. Consequently, Parsaddhu fell down and immediately accused Jeeta Harijan and accused Parbhoo Harijan altered for running away. Thereafter, all the accused persons were unsuccessfully chased by P.W. 2 Mansaram, P. W. 5 Jawahir, P. W. 6 Bans Narain and P. W. 7 Murahu and the said unsuccessful chase was subsequently joined by P. W. 3 Surahu and P. W. 4 Ramjag. After half an hour Parsaddhu succumbed to the injuries. Ext. 2, the written report of the incident, was lodged with the police of Aharaura at 9.45 a.m. by P. W. 2 Mansaram, a son of the deceased. Accordingly, the police had registered case crime No. 59/78 for the offence under Section 302, I.P.C. against, all the accused persons. The investigation was immediately undertaken and started by P. W. 8 Madan Mohan Pathak, the then Station Officer, Aharaura. The special report about this crime was dispatched at 10 a.m. through Doodh Nath a constable No. 11 C. P. P. W. 9 Madan Mohan Pathak came to the place of occurrence and he conducted the inquest between 1.30 p.m. and 3.00 p.m. on the same day. Thereafter, the autopsy of the deceased was conducted by P. W. 1 Dr. P. L. Pandey, Medical Officer, Primary Health Centre, Chunar, Mirzapur at 10.00 a.m. on 17-3-78. After concluding the investigation, P. W. 8 Madan Mohan Pathak submitted the charge-sheet Ext. Ka-22 against the all accused persons for the offence under Section 302, I.P.C. on 12-5-78. There after the case committed to the court of Sessions by Sri Imtiazuddin the C. J. M., Mirzapur by his order dated 11-4-79.
4. After hearing the accused persons, the learned trial court framed charge under Section 302, I.P.C. against accused Meeta Harijan and Dukharan Harijan, while accused Jeeta Harijan and Prabhoo Harijan were charged under Section 302/34 I.P.C. They pleaded not guilty and claimed to be tried. All of them have denied their participation in the occurrence wherein Parasaddhu was done to death on the night between 15th and 16th of March, 1978. Out of them accused Meeta Harijan has disclosed that he had been wrongly implicated, while his brother Jeeta Harijan failed to assign any reason for his prosecution. Prabhoo Harijan had contended that he had been implicated on the basis of doubt and suspicion while accused Dukharan Harijan had disclosed that he had been falsely implicated because he was a witness in a criminal case against the station officer, a sub-Inspector and four constables of police station Aharaura, Mirzapur.
5. The prosecution has examined in all nine witnesses, while the accused persons have fully cross examined one witness, P. W. 2 Mansaram. Accused Parbhoo Harijan and Dukharan Harijan did not support the Prosecution case and they were declared hostile and nothing tangible could be extracted during the cross-examination by prosecution. The blood stained earth and plain earth establishing the place of occurrence and there was no serious challenged by defence regarding the place of occurrence. Learned Court below holding the accused persons guilty passed the sentences against which the aforesaid appeal has been preferred.
6. It has been argued by the learned counsel for the appellants that so far as the eye-witnesses are concerned they are closely related. They are sons, sister's son and brother's son of the deceased and submitted that there were two independent witnesses who did not support the prosecution case and it has come out from the evidence of P. W. 3 that the F. I. R. was lodged at 6 a.m. but according to the prosecution it was lodged at about 9.45 a.m. on 16-3-78. It has been further contended that there are discrepancies between the oral and medical evidences. The doctor did not find any head injury while in the inquest report there was a head injury. Eye-witnesses have claimed that the deceased was given lathi blow on his head. Obviously, lathi was definitely given with force though there might have been no intention to finish him. Head injury was rightly observed by the I. O. but the doctor who held post mortem examination did not find the same. It has been submitted that the doctor's report was nothing but an obliging report on the pressure of the police because appellant Dukharan Harijan was a witness against the H. S. O. and 4 constables in a criminal case. It has been submitted that as per the prosecution evidences there was one pistol shot fired by appellant No. 4 Dukharan Harijan but the doctor found multiple injuries on the back of the deceased. The doctor tried to explain them as exit-wounds but it should be borne into our mind that pellets were found inside the dead body and so hardly there was any scope of so many exit-wounds and several fired cartridge-caps were marked as material exhibits which were found near the dead body of the deceased. It has been submitted by the learned A. G. A. that it was just a mistake on the part of the I. O. to seize the torches and that should not be blunder to the taken into account so seriously, if there was any such blunder on the part of the prosecution agency then in that event the benefit should go in favour of the appellants because it was admitted fact that it was a pitch-dark night. It has been further argued by the appellants that the doctor did not find any such undigested food in the stomach or intestine. Even assuming that there was laceration in the intestine that would not result in pumping out all food materials from the stomach or small intestine of the deceased. The doctor did not find any undigested food material in the abdomen cavity. So it is to be presumed that the death took place much earlier and the statements of all the alleged eye-witnesses who were highly interested are not to be believed. It is to be kept in our mind that the police were enimical as there was an earlier enimical case against the police persons and in that case one of the appellants was a witness. That criminal case against the station officer and 4 constables was pending. Learned A. C. A. supported the judgment on the ground as assigned by the learned court below in holding the appellant Dukharan Harijan guilty of the offence under Section 302, I.P.C. and holding other appellants guilty under Section 302/34, I.P.C.
7. Duly considered the submissions of both sides and perused the records very carefully and gone through the evidences very minutely. Simply because P. W. 2 Mansha Ram, P. W. 5 Jawahir, P. W. 6 Bans Maraina and P. W. 7 Murahu are the close relations of the deceased, so for that reason only they should not be disbelieved but their evidences should be scanned with due care and cautions and it should also be kept in our mind that besides near relations there are two other persons namely P. W. 3 Surahu and P. W. 4 Ram Jag who are the independent witnesses and it has been submitted by the prosecution that they were gained over and were declared hostile. The accused persons are poor harijans and ordinarily they are not supposed to have the capacity to win the witnesses who did not belong to their community. Be that as it may, it is the positive evidence that the deceased took chapati of barely-flour at about 10.30 p.m. and the incident took place at about 11.60 p.m. but no undigested food material was found by the doctor. The doctor tried to explain by saying that possibly undigested food material leaked out from ruptured intestine but he did not find anything in the abdomen-cavity. Be that as it may, the entire food materials cannot be expected to come out from the elementary system because the person who had received serious injuries was not likely to have any peristolic movement in her intestine and it was not likely that entire undigested food material to come out. Moreover, within one honour from taking dinner it was not expected for undigested food to reach beyond deodenum in ordinary course. The doctor did not find any head injury on the body of the deceased during post mortem examination, was also very significant. It is evidenced that a lathi blow was given on the head of the deceased and obviously it was not a mild blow and the I. O. also found the said injury on the forehead of the deceased but it is peculiar enough that injury was lost sight of in scrutiny of the medical evidences, it appeared to us that the doctor was bent upon to support the prosecution case by all means. The night was pitch-dark but not a single torch was seized. There was only one pistol shot by one of the assailants but the doctor found multiple exit wounds. There were pellets which were found inside the abdomen. From a country made pistol, it cannot be expected that after penetrating the abdomen and intestine and back muscles of a person it would cause multiple exit wounds as pellets were not bigger ones so that exit wounds would be found in large numbers. It appeared to us in the given condition that there might not be any exit wound.
8. In view of our discussion made above relating to medical evidence and in view of our discussions made above relating to other circumstances, we do not find it safe to allow the sentence to stand. The accused appellants arc entitled to get the benefit of doubt.
9. In the circumstances, the appeal stands allowed and the appellant Dukhurun Harijan and Meeta Harijan are hereby acquitted of the aforesaid charge under Section 302, I.P.C. and other appellants are also acquitted of the charge under Section 302/34, I.P.C. Surities he discharged from their respective hail bonds. Exhibits be disposed of as per rules.